Branson v. Roelofsz, 2017

• Decision Date: 27 July 1937
• Docket Number: 2017
• Citation: 52 Wyo. 101,70 P.2d 589
• Parties: BRANSON v. ROELOFSZ, ET AL
• Court: Wyoming Supreme Court

70 P.2d 589

52 Wyo. 101

BRANSON v. ROELOFSZ, ET AL

No. 2017

Supreme Court of Wyoming

July 27, 1937

ERROR to the District Court of Natrona County; C. D. MURANE, Judge.

Will contest by Donald D. Roelofsz and others against K. Gertrude Branson. Judgment setting aside the will, and K. Gertrude Branson brings error.

Affirmed.

For the plaintiff in error there was a brief and oral argument by Fred W. Layman of Casper, Wyoming.

The Court erred in permitting the contestants' witness Johnson to testify to the hypothetical question propounded to him, respecting the mental condition of testatrix, for the reason that said question was incomplete and omitted important evidence introduced by contestants. People v Vanderhoof, (Mich.) 39 N.W. 28; 18 American & English Annotated Cases 646. Nichols App. Evidence, Vol. 2, page 2079; Nichols v. Oregon (Utah.) 70 P. 996; Swanson v. Hood (Wash.) 170 P. 135; Phifer v Baker, 34 Wyo. 415. Instruction numbered 1, given by the Court, was erroneous. In Re Chevallier's Estate (Cal.) 113 P. 130; Re Guilbert's Estate (Cal.) 188 P. 807; Re Finkler's Estate (Cal.) 46 P.2d 153. Instruction No. 6 given by the court was erroneous, not being complete. The court erred in refusing to give instruction A-1, requested by plaintiff. 66 C. J. 611; In re Donovan's Estate (Cal.) 299 P. 816. The court erred in refusing to give requested instruction A-3. 64 C. J. 581. The court erred in refusing to give instruction A-4 and A-5. In re Visaxis Estate (Cal.) 273 P. 165. The court erred in refusing to give requested instruction No. A-6 and Instruction A-7. In re Diggins' Estate (Ore.) 149 P. 73; In re Sexton's Estate (Cal.) 251 P 778. Instruction A-8 should have been given to the jury. In re Riordan's Estate (Cal.) 109 P. 629. The court erred in refusing to give requested instructions A-9, A-10 and A-11. Finkler's Estate, supra. The court erred in denying contestee's motion for a judgment, notwithstanding the verdict. Section 89-2605, R. S. 1931. In re Guilbert's Estate, 118 P. 807. Pacific Digest, Vol. 39, page 49, Key 31 groups the authorities on this question, also annotated note following Slaughter v. Heath, 27 L. R. A. (N. S.) 1. The court erred in denying contestee's motion for a new trial. 46 C. J. 414; U. S. v. Trabing, 3 Wyo. 144; 46 C. J. 416.

For the defendants in error, there was a brief and oral argument by M. L. Bishop, Jr. of Casper.

The evidence established that testatrix suffered from a form of insane delusions and was incompetent to make a will. Rivard v. Rivard (Mich.) 66 N.W. 681; In re Kahn's Will, 5 N.Y.S. 556; Miller v. White (N. Y.) 5 Redf. Sur. 320. The case of In re Finkler's Estate (Cal.) 46 P.2d 148, cited by counsel is clearly not in point on the facts in the present case. Even granting that there was a conflict in the evidence as to the testamentary capacity of testatrix, the verdict of the jury should not be disturbed. Campbell v. Campbell (Ill.) 22 N.E. 620; Dillman v. McDanel (Ill.) 78 N.E. 591. The refusal of the trial court to give the instructions requested by contestant was not erroneous. In fact, the case was fairly presented to the jury on the instructions given by the trial court. A verdict supported by evidence will not be disturbed. Edwards v. O'Brien, 2 Wyo. 496; Lumber Co. v. Woods, 1 Wyo. 411; Sites v. Howrey (Calif.) 291 P. 597; 26 R. C. L. 1070. Suicide or attempted suicide is evidence tending to show insanity. Frary v. Gusha (Vt.) 9 A. 549; Rathjens v. Merrill (Wash.) 80 P. 754; Wilkinson v. Service (Ill.) 94 N.E. 50; Prewitt v. State (Mill.) 6 A. L. R. 1476; In re Abel's Estate (Nev.) 93 P. 227; In re Ellwanger's Will (N. Y. ) 114 N.Y.S. 727; In re McCoy's Estate (Utah) 63 P.2d 620. The following cases deal with conflicting evidence as to insane delusions: Swygart v. Willard (Ind.) 76 N.E. 755; Keithley v. Stafford (Ill.) 18 N.E. 740; Prentis v. Bates (Mich.) 50 N.W. 637; Hurley v. Caldwell (Ill.) 91 N.E. 655. Hereditary insanity is recognized by the courts in numerous cases. The law is well settled in this state that where there is substantial evidence to warrant the case going to the jury and the jury has rendered a verdict, and an order denying a new trial for insufficiency of the evidence has been made, the appellate court will not interfere. Kester v. Wagner, 22 Wyo. 512; 145 P. 748; Kowlak v. Tensleep Mercantile Co. (Wyo.) 281 P. 1000; McDaniel v. Hoblit (Wyo.) 245 P. 295; Barrett v. Oakley (Wyo.) 278 P. 538. The judgment below should be affirmed.

BLUME, Chief Justice. RINER and KIMBALL, JJ., concur.

OPINION

BLUME, Chief Justice.

This is a case involving the contest of a will. There was a verdict and judgment setting aside the will, and the contestee has appealed. The will in question was executed on November 16, 1934, and in its form complied with the statutes. It was set aside on the ground that the testatrix was of unsound mind. She left surviving her only brothers and sisters and nephews and nieces. The will left these relatives $ 1.00 each, and aside from that and aside from certain books left to Wilbert Henry Campbell, and certain provisions for funeral expenses and a tombstone for her deceased husband David Davis, testatrix left her estate to a certain "Foundation" to be created for the benefit of the blind.

1. At the conclusion of the testimony, the contestee moved for a directed verdict. The motion was overruled. A motion for a new trial was filed on the ground that the evidence was insufficient to support the verdict. That too was overruled. Thereupon a motion was filed for a judgment notwithstanding the verdict. The court also overruled that. Error is assigned in these rulings of the court. They involve a review of the testimony and inasmuch as that will give a general view of the facts of the case, we shall discuss them first, stating in detail, however, only the testimony in favor of the prevailing parties, the contestants, and only the salient facts thereof.

The decedent was born in August, 1873. Her father was confined in the Topeka State Hospital, an institution for the insane, and was allowed to go home at times. On one of these visits he bought some morphine and after returning to the hospital he committed suicide. He had delusions and melancholia. One of the brothers of the decedent, too, was confined during several periods, commencing with January, 1921, in the same institution. He was of the maniac type. He died in 1931 while on parole. The decedent during her young womanhood taught school. She came to Wyoming in the early part of this century and was married to one David Davis, who died about 1923, leaving all of his property to his widow, consisting of personal property of the value of $ 54,000 or more and of a ranch of several thousand acres on Bad Water Creek, to which a small acreage of land was added subsequently, and which, at the time of the death of her husband was, perhaps, of the value of about $ 20,000. Davis and his wife lived on the ranch. The decedent continued to live on the ranch until about 1927 or 1928, when she moved into a home which she apparently purchased at Casper, Wyoming. It seems that, after the death of her first husband, she married one Robinson. What became of their relationship is not definitely shown, but judging from incidental testimony it may be gathered that, perhaps, it ended in a divorce. Decedent died in April, 1935, leaving an estate of approximately $ 38,000-$ 43,000.

During the year 1924, decedent attempted to commit suicide with a revolver in a fit of despondency. She did not succeed, but lost her eye-balls and became blind. In 1926, she learned the so-called Braille system--a system enabling the blind to read.

A number of incidents were shown by the testimony, commencing with 1923 and ending shortly previous to the time of the execution of the last will and testament in question, which were intended to show that decedent had delusions and was generally of unsound mind. In 1923, before she became blind her husband, Davis, told her that one of the line fences would be fixed at the joint expense of themselves and Davis's brother. She immediately flew into a violent rage and temper. Her husband "tried his best to calm her down. The more he tried, the more violent she became. Her eyes bulged out, and her face became almost livid." A good deal of testimony was given in connection with such temperament. After decedent became blind, she was induced to visit her mother and other relatives in Kansas. Donald Roelofsz, her brother, testified: "A. One night, about midnight, the neighbors came and told me Jozie (the decedent) had a spell and attacked my mother. Q. Did you go to Jozie's place? A. Yes. Q. What did you find? A. Went and knocked on the door. Mother said 'Don, come in quick, Jozie had a spell; I am scared to death.' She rolled up her arm. I could see where it was black and blue where Jozie had took hold of her. Jozie was still in the other room in an uncontrolled mad spell. * * * Q. How long would the depressed spells last? A. Sometimes a day; sometimes two or three weeks. Q. Did you ever see her when she was angry? A. Several times, uncontrollably crazy. A. When angry, how would she act? A. There wasn't any reason to her madness--would just rave around--you wouldn't reason with her." So the witness Scherk testified that her angry spells would last 30 to 40 minutes and until he simply had to go away. She mistreated her sister's children; at one time picked up a child about five years of age and threw him around with such force that she split his lip open on the edge of a table. Decedent later denied her act, asserted that the child's mother got some blood somewhere else and smeared it on the child's lips. At one time a man was shooting chickens about two hundred yards from decedent's ranch, on...